By Julie Pelegrin
We’re halfway through the session. Some bills have passed, some have not, and most are still winding their way through the process. As the session picks up speed, bill titles become a matter of greater interest. “My bill just died. Is there another title I can fit it under?” is a question the drafting office hears on a regular basis in the last 60 days of the session. So now is a good time to review the constitutional requirements and the customs and practices pertaining to bill titles.
The first thing to remember: Section 21 of article V of the Colorado Constitution states that a bill may contain only one subject, which is clearly expressed in the bill title. Every section of the bill, as introduced and as it is amended through the legislative process, must be germane, or closely allied, to the single subject of the bill. The clear statement of the bill’s purpose helps ensure that the public has notice of what the bill does. Requiring every section to be germane to the title helps avoid public surprise as to what’s in the bill, protects the Governor’s ability to exercise the veto power effectively, and prevents the practice of log-rolling (i.e., packaging into a single bill many disparate provisions that couldn’t pass individually).
The other constitutional requirement to remember about bill titles is section 17 of article V of the Colorado Constitution: A bill cannot be so amended through the legislative process as to change the bill’s original purpose. In the case of Parrish v. Lamm, the Colorado Supreme Court held that the purpose of section 17 of article V is to prevent a bill that relates to one subject when introduced from being so drastically amended during the legislative process that, when passed, it relates to an entirely different subject. The court looked to the purpose that the General Assembly intended to accomplish through the bill and found that, even if the means of accomplishing the purpose was stated in the bill title, the General Assembly could amend the bill and its title to accomplish the purpose by some other means.
So, once the bill is introduced, what actions can the General Assembly take regarding a bill title? A legislator can amend a bill title to make it narrower. For example, if the introduced bill title is “concerning the regulation of private investigators”, a legislator could amend the title to read: “Concerning the regulation of private investigators who investigate claims relating to animals.” The amendment narrows the bill to apply only to certain private investigators, not to all private investigators. Once the bill title is narrowed, all of the sections in the bill and amendments to the bill must be germane to the new, narrower title. It is very important to note, however, that another legislator, in a later stage of the process, can amend the title by removing the limiting language and restoring the bill title as introduced.
By custom and practice, the General Assembly does not entertain amendments to broaden a title, the logic being that, if a bill title needs to be broader to accommodate an amendment, then the bill may contain more than one subject; all of the sections of the bill will not be germane to the original bill title and may not fit within the original purpose of the bill. Using the earlier example, “concerning the regulation of private investigators”, a committee chair could rule out of order an amendment to change the bill title to read: “Concerning the regulation of persons who investigate actions that may result in litigation.” With this title, a legislator could introduce an amendment to regulate investigators on a police force or investigators who work for the department of revenue, in addition to private investigators. This title amendment could also be interpreted as a change to the original purpose of the bill, which was to regulate persons who are not otherwise regulated by a public entity.
The single subject requirement doesn’t always result in a narrow bill title. A bill title can be very broad and still cover a single subject. For example, “concerning education,” “concerning expanding the availability of public transportation,” and “concerning child care” are all fairly broad bill titles. It’s these types of titles that a legislator may look for when his or her bill is killed. However, most legislators prefer a narrow title that gives them more control over the final content of their bills.
As a bill moves through the legislative process, it’s up to the presiding officer at each stage – the committee chair or the Speaker of the House or the President of the Senate – to decide whether an amendment fits within the single subject expressed in a title. After a bill passes, if someone thinks the bill contains more than one subject, he or she may bring a civil suit claiming the bill is unconstitutional. These cases are very rare. But when they occur, the court generally defers to the General Assembly’s judgment in passing the bill. However, if the court finds that a section of the bill is not germane to the title, that section will be held unconstitutional, but the rest of the bill will be valid.
Early in each legislative session, the General Assembly passes a bill to enact the Colorado Revised Statutes, as republished with all of the changes that passed by bill during the previous legislative session, as the positive and statutory law of Colorado. This bill cures any title defects that may have existed with any bills passed during the preceding legislative session. If someone wants to challenge the constitutionality of a bill based on whether all sections of the bill fit within the title, that person must do so before the General Assembly passes the bill to enact the Colorado Revised Statutes.